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submitted: March 10, 1986.


Appeal from the Judgment of Sentence entered February 7, 1983 in the Court of Common Pleas of Allegheny County, Criminal Division, No. CC 8201029


Timothy E. Finnerty, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

Wickersham, Watkins and Cercone, JJ.

Author: Cercone

[ 355 Pa. Super. Page 34]

Appellant, Gerald Bogan, was charged by Information filed February 25, 1982 with Armed Robbery and Conspiracy. He was convicted by jury on both counts. On February 7, 1983, appellant was sentenced to a term of imprisonment of ten (10) to twenty (20) years on the robbery charge and five (5) to ten (10) years for the criminal conspiracy charge, to be served consecutively. Following the trial court's denial of appellant's post trial motions, filed nuno pro tunc by leave of this court, this timely appeal was filed.

Appellant raises four issues in this appeal which will be addressed seriatim. He first alleges that his right to a speedy trial, pursuant to Pennsylvania Rule of Criminal Procedure 1100, was violated when, on November 13, 1982, the trial court granted the Commonwealth's motion to extend the time for trial.

On June 25, 1982, appellant waived his right to speedy trial and agreed to a final trial date of November 11, 1982. When the Commonwealth and appellant appeared for trial on November 12, 1982 (November 11 being a court holiday), there were no judges available to hear the case. The Commonwealth filed a petition for extension of time on November 12, 1982 and another on November 17, 1982. On November 12, the court granted the Commonwealth's motion for extension of time and ordered the case be tried on the first available trial date, but not later than January 18, 1988, Trial commenced on December 20, 1982 and he was found guilty for the crime of robbery and conspiracy.

Appellant claims that the extension of time was improperly granted because the Commonwealth (1) failed to show due diligence in bringing the case to trial, (2) failed to sufficiently explain the delay attributed to the judicial backlog in the court system; and, (3) the Acting Administrative Judge failed to schedule appellant's trial for the earliest

[ 355 Pa. Super. Page 35]

    date after November 12, 1982, consistent with the business of the court, as required by Rule 1100(c)(4).*fn1

The lower court in its opinion attempts to justify the extension primarily on the ground that the case could not have been brought to trial within the 180 day period because no judges were available to hear the case and, therefore, judicial delay was unavoidable.

Assuming, arguendo, that the Commonwealth in its petition to extend did show due diligence in being ready to bring appellant to trial within the time required by Rule 1100, and that judicial delay was properly shown, we find nevertheless, that the Commonwealth failed to show on-the-record that appellant's trial on December 20, 1982 was the first date available consistent with the request and the court's business. However, due to what appears to be inadvertence or negligence by appellate counsel, we are compelled to find that this issue has been waived for appellate review at this time.*fn2

In the interests of judicial economy in future Rule 1100 hearings and because this writer is thoroughly familiar with

[ 355 Pa. Super. Page 36]

    the record in this case, we will first address, in obiter dictum, the merits of appellant's Rule 1100 claim. We feel compelled to do this because the procedures employed by the court below and/or the attorney for the Commonwealth were such as to prevent the creation of a record by which this court, on review, could analyze appellant's Rule 1100 claim on the merits. Such procedural irregularities, when properly raised for appellate review, form the basis by which charges against defendants, otherwise properly tried and convicted, are dismissed for "technicalities". Such dismissals, while rightfully required by the law to protect the rights of individual defendants, do not, as a consequence of procedural errors by the Commonwealth, protect the general societal interest in seeing an accused tried at a full and fair hearing.

On November 12, 1982, both parties were prepared to go to trial. The lower court judge, sitting as acting administrative judge, took judicial notice of the fact that there were no judges available that day to hear the case. Despite the Assistant District Attorney's urging, the judge refused to schedule this case for a date certain and ordered an extension to the earliest available date but not later than January 12, 1983. There is no explanation on the record why the lower court judge, as acting administrative judge, was unable to set a date certain for trial. On November 16, 1982, Judge Dauer, President Judge in the Criminal Division, assigned the case to himself and listed the case for trial on January 27, 1983. On November 17, 1982, the Commonwealth filed another petition to extend the time for trial. The record contains an order that the November 17 petition would be presented for consideration and disposition on December 6, 1982. However, the record contains no transcript of such a hearing. The record is unclear as to when appellant's case was rescheduled for the December 20, 1982 trial date before Judge Dauer. The record is absolutely devoid of information or testimony showing that this case was listed for the "first available date" after

[ 355 Pa. Super. Page 37]

November 12 as is required by Rule 1100(c)(4). See footnote 1, supra.

Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), is the seminal case which explains the Commonwealth's burden with a Rule 1100(c) extension. Therein the Court stated:

Henceforth, the trial court may grant an extension under rule 1100(c) only upon a record showing: (1) the "due diligence" of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court's business; provided that if the delay is due to the court's inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided.

Id., 469 Pa. at 222, 364 A.2d at 1349-50. (emphasis added)

[ 355 Pa. Super. Page 38]

Judicial delay, of course, may provide the basis for the granting of a petition to extend, see Commonwealth v. Eck, 272 Pa. Super. 406, 410, 416 A.2d 520 (1979) (citing cases) and Commonwealth v. Mayfield, supra; but the burden is upon the Commonwealth to make a record showing due diligence, Commonwealth v. Eck, supra; Commonwealth v. Mayfield, supra; Commonwealth v. Warman, 260 Pa. Super. 130, 393 A.2d 1046 (1978); and that the actual trial date was the earliest date available. See Commonwealth v. Lafty, 333 Pa. Super. 428, 434 n. 1, 482 A.2d 643, 646 n. 1, (1984); Commonwealth v. Donaldson, 334 Pa. Super. 473, 483 A.2d 549 (1984), affirmed 509 Pa. 601, 506 A.2d 885 (1986); Commonwealth v. Jackson, 336 Pa. Super. 486, 485 A.2d 1186 (1984), affirmed 509 Pa. 601, 506 A.2d 885 (1986). The type of evidence required for proving that trial has been scheduled for the earliest possible date consistent with the court's business was discussed in Commonwealth v. Jackson, 269 Pa. Super. 249, 253, 409 A.2d 873, 875 (1979). The Jackson court stated that judicial notice may be sufficient to provide a factual foundation for appellate review of this issue, citing Commonwealth v. Page 38} Ehredt, 485 Pa. 191, 401 A.2d 358 (1979) and Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978).

In the case sub judice we have neither a transcript of any discussion which took place when trial was rescheduled for December 20th nor judicial notice, of record, that the trial was scheduled for the earliest date possible. We have only the trial court's order granting the extension on the condition that appellant be tried on the first available trial date of 1982 or 1983*fn3 and we have a statement by Judge Dauer, made at the post-conviction hearing, to the effect that there were no judges available on November 12, 1982, with records to substantiate that assertion. Neither of these items rises to on-the-record judicial notice which this court would consider sufficient to meet the Commonwealth's burden.*fn4

Had this issue been properly brought before us, we would have been compelled by the doctrine of stare decisis to reverse and vacate the judgment of sentence and dismiss appellant. Such a result was imposed by this court, sitting en banc, in Commonwealth v. Donaldson, supra, and affirmed our Supreme Court. The same result was reached in Commonwealth v. Jackson, supra.

This is the reason for our cautionary narrative. However, the Commonwealth has correctly claimed that this

[ 355 Pa. Super. Page 39]

Rule 1100 issue has not been properly preserved for appellate review and this issue is waived.

Having found that the Rule 1100 issue is waived, we proceed to the merits of the other issues in this case.

Of the remaining three issues raised*fn5 by appellant, we affirm on the basis of the lower court opinion which adequately addressed those claims. In respect to the claim that trial counsel was ineffective for introducing his "mug shot" at trial, the facts and explanation given by trial counsel are essentially indistinguishable from those in Commonwealth v. Cooper, 333 Pa. Super. 559, 482 A.2d 1014 (1984). In Cooper the appellant alleged that trial counsel was ineffective for bringing out on cross-examination evidence which necessarily implied that the defendant had a prior criminal record. Counsel was attempting to attack the victim's identification by trying to show that in-court and line up identifications resulted from a suggestive photographic identification. The tactical decision was found to be trial counsel's to make and counsel was not deemed to be ineffective.

In this case, counsel introduced the mug shots in order to attack the credibility of the victims' identification of appellant and his strategy was reasonable since it was aimed at promoting appellant's best interests.

Accordingly, judgment of sentence is affirmed.


Judgment affirmed.

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